Flexible working: New legislation, tips for employers and what the future looks like

In light of the Flexible Working Bill which is making its way through Parliament, employment lawyer, Eleanor Parkes, explores the demand for increasing flexibility in the workplace, provides some top tips for employers on how to respond to flexible working requests and considers what the future holds for flexible working.

A father, his baby on his lap, searches for a job while sitting on his living room floor. A young woman in her pink home office does the same. A mother hunts for a job on her phone, in the morning, as her child clambers across her bed to join her. These are scenes from a current advertising campaign by Indeed, one of the world’s biggest job websites. The adverts reflect how multiple factors – including the pandemic, technology, and changing attitudes towards work-life balance – have altered the way workers and working arrangements are viewed. This is reflected in a Private Members Bill currently making its way through Parliament, which is proposing to give workers the right to flexible working from day one of employment.

Employee surveys consistently show around 80% would like access to some form of flexibility, with working parents forming the largest cohort. Since covid, fathers have been more involved in childcare than before the pandemic started. The change in attitudes does not just apply to parents. For many people with disabilities or long-term illnesses, the conditions of a traditional office job can be challenging, and research has shown that flexible working is a factor in enabling older workers to remain in the job market for longer. Rising petrol prices and climate change also incentivise a reduction in commuting.

Employers who can offer flexible working have generally reported positive findings in terms of staff retention and morale. Despite this, and employees’ shifting expectations, only a quarter of jobs advertise any flexibility and many employers are hesitant to embrace new forms of working.

Flexible working applications

Under the Flexible Working Regulations 2014, if an employee has been employed for 26 weeks they have the right to request flexible working by sending a ‘statutory application’ to their employer. To optimise their chances, an employee can try to anticipate the concerns their employer may have about their request and address those in writing at the earliest stage.

Their application must include:

• a dated letter that includes a statement that it is a statutory request
• details of how they would like to work flexibly and when they want to start
• an explanation of how they think flexible working might affect the business and how this could be dealt with
• a statement saying if and when they’ve made a previous application

Employees can only make one request under the statutory regime in any 12-month period, but it is possible to make additional informal requests.

Refusing a flexible working application

Accommodating flexible working requests is more challenging for smaller employers, who employ the vast majority of the workforce, and for those with highly specialised staff. Employers can decline a request if there is a valid business reason, but it must fall within one of the following eight grounds:

1. It will cost your business too much
2. You cannot reorganise the work among other staff
3. You cannot recruit more staff
4. There will be a negative effect on quality
5. There will be a negative effect on the business’ ability to meet customer demand
6. There will be a negative effect on performance
7. There’s not enough work for your employee to do when they’ve requested to work
8. There are planned changes to the business, for example, you intend to reorganise or change the business and think the request will not fit with these plans.

If an employer decides to turn down the employee’s application, trying to find a compromise, rather than simply refusing will help employers maintain good working relationships, retain staff, and avoid legal disputes.

Flexible working requests – top tips for employers to avoid claims

1. Employers should deal with any flexible working requests in a fair, consistent and reasonable way.

Flexible working policies are gaining in popularity as a way of clarifying the employer’s procedures in such situations. For example, after an employee makes a statutory request, employers should notify employees of the three-month decision period, unless they have agreed with them to extend it. After considering an application, ensuring the decision is based on facts and not personal opinion is particularly important for employers.

2. Informal working requests should also be treated with great care.

Employers are likely to receive a number of requests from staff members about the possibility of changing their working pattern, temporarily or permanently. Although employers are not obliged to follow the statutory procedure for informal requests, refusing without giving the request appropriate consideration could give rise to claims outside the statutory flexible working scheme, such as a claim for discrimination. For example, an employee with less than 26 weeks’ continuous service who wishes to vary her hours because of her childcare commitments may have an indirect discrimination claim if her request is rejected.

3. Line managers should support and encourage employees through the employer’s procedures for flexible working.

Not taking the request seriously will increase the likelihood of a discrimination claim and diminish the employer’s chances of successfully defending it. Serving as an example is the 2019 case of Mrs Alice Thompson v Scancrown Ltd T/a Manors, where the employment tribunal awarded Mrs Thompson almost £185,000 in compensation after her employer turned down her flexible working request. The tribunal found that the employer’s refusal to modify her working hours to accommodate her childcare responsibilities was indirect sex discrimination.

Where is the law on flexible working going?

National interest in flexible working arrangements is not going away. A new paper from a Cambridge University Press journal claims a four-day week without loss of pay would not only bring productivity gains but would also help tackle issues around wellbeing, social cohesion and inequality which are impacted by a “work-centric” society.

A link is often made between flexible working and equality and diversity. In April 2022 more than 600 employers (including Debenhams Ottaway) signed a Menopause Workplace Pledge to commit to making their workplace understanding and supportive of employees who are experiencing menopause. The government has also this April opened a consultation on mental health and wellbeing outcomes which invites ideas on how employers can support and protect the mental health of their employees. In the case of supporting employees going through menopause, pregnancy and maternity/paternity, and mental health issues, flexible working is a useful tool for employers.

As for changes to the law, the Flexible Working Bill proposes that all workers would have a legal right to request flexible working from day one of employment, without the requirement of 26 weeks’ continuous service. What is certain is that employees’ demands are not going away.

For more information or advice on how you can manage flexible working for your business, please contact someone in our employment team.